DMCA Repeat Infringer Policy: How It Affects Your Hosting Account

17 USC 512(i) requires service providers seeking safe harbor to 'reasonably implement' a policy to terminate the accounts of 'repeat infringers.' The law doesn't define what counts as a reasonable implementation, leading to wide variation in how providers apply this requirement.

Providers typically define repeat infringer policies in their terms of service. Common implementations include:

• 'Three strikes' policy: three valid DMCA notices against an account triggers termination
• 'Proportional' policy: account is evaluated based on infringement frequency relative to total content
• Discretionary policy: provider evaluates each situation and terminates if it determines a pattern of infringement exists

Important: contested DMCA notices (where you file counter-notices) count differently than unchallenged notices in most providers' policies. Successfully counter-noticed material is often not counted as a 'strike' in providers with reasonable policies.

Strategies to protect your hosting account from wrongful DMCA-based termination:

• File counter-notices for every invalid takedown. Successfully counter-noticed content is generally not counted as a repeat infringement strike. Ignoring takedowns means the provider can count them as strikes.
• Document your content ownership. Keep records of original creation dates, licenses, and fair use justifications for all content. This evidence supports counter-notices and demonstrates good faith to the provider.
• Communicate proactively with your host. If you operate content that attracts takedowns, explain your legitimate purpose to your hosting provider. Many providers give more benefit of the doubt to clients who communicate proactively versus those who appear to hide.
• Use DMCA-ignored hosting for targeted content. If you know specific content categories will be repeatedly targeted, hosting that content in Romania or Iceland eliminates the repeat infringer risk entirely.